A Celebration of Berkeley Law’s New Faculty Chair Holders

By Susan Gluss

The intellectual aspirations of law faculty emerged in full display last month, as Berkeley Law honored five of its own. The distinguished scholars are the new recipients of endowed faculty chairs, chosen for their contributions to legal education and scholarship. The celebratory event was held at the Memorial Stadium’s University Club, where faculty and family members mingled together and admired the Bay Area view.

After an opening welcome by Interim Dean Gillian Lester, the honorees strolled to the podium to share bits of the research that had captured their imaginations. Each expressed gratitude to the donors whose gifts enabled them to delve into a specific course of study.

During the presentations, a passion for analytical pursuits emerged, as did an interest in a broader social context: no armchair scholars in this crowd.

History and politics

Christopher Kutz

Christopher Kutz, the newly endowed C. William Maxeiner Distinguished Professor in International Law, praised Maxeiner ’41 and his wife Rosalie whose gift grew out of their belief that “law provided a path towards global cooperation and growth.”

In recent years, Kutz said, he’s been increasingly drawn to international problems due to the pull of history and politics. Along that theme, he’s been finishing a book manuscript, War and Democracy, which is “about the violence done in our names, in war specifically, and national security strategy generally.”

Kutz, the director of the Kadish Center for Morality, Law & Public Affairs, described the book as “an attempt to think through the specific choices our government has made since 2001.” These tactics include the extensive use of drone warfare and secret laws, the reliance on torture in interrogation, and the engagement in pro-democratic military interventions—the “wrong choice” in most cases, Kutz said.

The professor’s new work examines topics such as the feasibility of global tax schemes to tackle climate change and wealth inequality, and the deterrent effects of international criminal law.

Back-stage conflict

Calvin Morrill

Calvin Morrill, the Stefan A. Riesenfeld Professor of Law, opened with a tribute to former Professor Riesenfeld ’37, a renowned authority on international and comparative law, legal history, and more.

Morrill looks at the management of social problems, grievances, and conflicts within organizations. He studies what he calls “back-stage conflicts” outside the public glare: the “social shadows” where we’re less moored to conformity and accountability. He posits that it’s “on the back-stages that people produce a lot of innovation, including new kinds of organizations and new forums for dispute resolution.”

His research spans institutional groups, from high-tech executives in conflict at the office—to students in conflict at inner-city schools. Morrill, the associate dean of the Jurisprudence and Social Policy Program, said back-stages can provide “a way to pierce through assumptions, to understand that what we take for granted on the front-stage” can, in fact, be changed.

Binders and filibusters

Anne Joseph O’Connell

Anne Joseph O’Connell, the George R. Johnson Professor of Law, thanked her chair’s namesake, a former Citation Award winner and 1929 alum, who “shared a love of agencies” during his stints with the FBI and state government.

O’Connell confessed to an obsession with agency staffing. Riffing her Washington Post column, she opined on four myths of political appointments. First: Delays in staffing are the Senate’s fault. Not so, she said. Although “the senate plays a big role…. presidents can take more than twice as long” to come up with nominations than the senate takes to confirm.

Professor O’Connell is now exploring the “potential” second myth: The end of the filibuster will make a big difference. She’s studying filibuster reform in more detail and how confirmation delays vary by institution. The third and fourth myths cover vacancies and diversity in appointees. She insists that “vacancies matter,” leading to a lag in regulation and enforcement. On the myth that Obama is not choosing the right people, she said he’s chosen more women, Latinos, Asian Americans and African Americans than five previous presidents.

Other nuggets from O’Connell’s research: the number of women appointees has not cracked 35 percent in any of the five previous administrations, and “they were more likely to be placed in positions that were not the agency’s highest.”

Privacy law

Paul Schwartz

Paul Schwartz, the Jefferson E. Peyser Professor of Law, gave thanks to the 1923 alum who made his work possible. He also acknowledged his brilliant colleagues, talented students, and hard-working staff.

Schwartz began studying privacy law in 1985 as a post-graduate student in Germany. He fondly recalled his first desktop computer, an IBM-clone that he likened to a “glorified typewriter” with less memory than today’s smartphones.

The chair holder and co-director of the Berkeley Center for Law & Technology noted four possible trends in the development of privacy law. First, he predicted an increase in the international flow—and regulation—of personal information. He cited the European Union’s Draft Data Protection Regulation as one example.

Second, he said the importance of California legislation would increase, calling it the “California-zation” of privacy law. “Sacramento has been busy passing laws, and the California economy is so important that the rest of the world has to pay attention,” he said.

He also predicted an even greater collection of personal information. “We can already glimpse this future in which our cars, refrigerators, and thermostats generate information about us and lead to automatic decision-making about us.” Lastly, Schwartz said there would be greater demand for this information and an even greater sharing of it between the government and private sector, which would “contribute to a blurring of lines” between the two.

The federal courts

John Yoo

The final honoree, John Yoo, is the Emanuel S. Heller Professor of Law and co- founder of the law school’s Korea Law Center. He paid tribute to a previous holder of the chair, Paul Mishkin, a long-time Berkeley Law professor and expert on the role of federal courts. Yoo praised Mishkin for “recognizing that courts had to respond to society’s broader political demands.”

Mishkin believed that “certain questions were legal and some were political, and that courts undermined their legitimacy when they strayed too far into the latter, Yoo said. “But at the same time, he maintained that reason and principled decision-making could allow the federal courts to maintain their important role in our democracy.” Mishkin influenced Yoo’s work in part by questioning both the uniqueness of courts as decision-making institutions and their competence in foreign affairs.

The Heller professorship was the first chair ever endowed at the law school, established by Clara Hellman Heller in the early 1900s in honor of her late husband.